Oregon State Bar Bulletin  DECEMBER 2012

You See It Your Way, I'll See It Mine

In January 2012,ABA Journal staffer Brian Sullivan wrote a piece on apologies and the law entitled “The Last Word: When the Last Thing You Want to do is the First Thing You Ought to Do.”

Sullivan told the Bulletin that in 2011, he “started to notice a small number of stories on medical malpractice where, instead of ‘deny and defend,’ medical providers decided to outright apologize. They offered an apology and a reasonable settlement amount and found that they got very good results. I wondered how this would translate to lawyers and their clients, so I went fishing on legal listservs, asking, ‘Have you ever used an apology?’ ”

“Within an hour,” says Sullivan, “I started getting emails that said, ‘Oh gosh, yes. I’m glad you’re doing this because the practice of law has gotten so nasty.’ ”

“We (the ABA Journal) have done a lot of articles on avoiding burn-out, being effective without selling your soul for a good outcome in your case,” he says. “The apology movement is part of it. If you want to be crass about it, it’s about getting a better outcome in the case. But a lot of people say, ‘I want people to feel good when they leave my office (because) they got listened to and somebody cares.’ Practicing law doesn’t have to drain you of your integrity. It doesn’t have to make you wish you’d chosen another profession.”

Armed with Sullivan’s article, and not having the sense to use listservs, the Bulletin made cold calls on civil litigators, mediators and judges and asked them about their experience with “the apology movement.” This is what they said:

• “In litigation cases, the subject of apology rarely comes up, and if it does, it’s only in the context of a statement made under confidentiality. It may express empathy, but not be a formal apology, and it rarely becomes formalized.” —Helle Rode, Portland, Oregon State Bar Alternative Dispute Resolution Section chair.

• “It’s been my experience that a dispute anywhere close to the litigation stage is beyond solution with just an apology, where no money or other tribute also is being exchanged.” —Peter Barnhisel, Corvallis, OSB Litigation Section executive committee member.

• “By the time it gets filed, it’s frequently too late for an apology. People want compensation. That’s frequently better received than an apology.” — Benjamin Bloom, Jackson County Circuit Court judge, Litigation Section executive committee member, former medical and other professional malpractice litigator.

• “The parties I see are so angry they can’t talk straight. I really think that, while the concept (of apology) is wonderful, it doesn’t happen in the courtroom.” — Paula Bechtold, Coos County Circuit Court judge who hears small claims and residential eviction cases in the afternoon if that morning’s mediation attempts have failed.